The Quoddy Tides

Eastport, Maine

2008 Sep 12

LNG opposition group plans to appeal BIA lawsuit dismissal

by Marie Jones Holmes

Pleasant Point members of Nulankeyutomnen Nkihtahkomikumon (NN) (We Take Care of Our Land) will appeal an August 14 decision by U.S. District Court Judge John Woodcock dismissing claims by the group against the U.S. Bureau of Indian Affairs (BIA). We Take Care of Our Land intends to appeal the decision to the First Circuit Court of Appeals in Boston.

The lawsuit is based on the BIA's alleged failure to comply with four federal laws in connection with its June 2, 2005, approval of a ground lease authorizing Quoddy Bay LNG to develop a liquefied natural gas (LNG) facility at the Split Rock site within the Pleasant Point Passamaquoddy Reservation. The lawsuit alleges that before approving the lease BIA failed to prepare an environmental impact statement; failed to consult with the National Marine Fisheries Service about impacts on endangered whales; failed to consult with the Tribal Historic Preservation officer about the cultural impacts, and failed to analyze the fair market value of the lease.

Vera Francis, NN organizer, says, "For almost three years, our organization has been engaged in litigation against the BIA. It was not until 2007, two years into our litigation, that the BIA raised the issue of exhaustion, on which Judge Woodcock based his decision to dismiss."

The issue of exhaustion centers around an Administrative Procedure Act (APA) in which a person suffering legal wrong because of agency action is entitled to judicial review if the aggrieved party has exhausted his administrative remedies within the agency. However, judicial review is not available if the aggrieved party has not exhausted his administrative remedies. This requirement permits the agency an opportunity to apply its expertise and correct its mistakes, it avoids disrupting the agency's processes, and it relieves the courts from having to engage in piecemeal review, which at the least is inefficient and upon completion of the agency process might prove to have been unnecessary. Based on this act, Judge Woodcock based his decision to dismiss.

Vera Francis says, "It is evident that the BIA has raised one procedural hurdle after another to avoid getting to the merits of the case. We aim to get to the merits of our case, even as the BIA continues to work closely with the company in obtaining amendments to the contract/ground lease. NN also aims to continue to pursue those critical elements that the BIA has overlooked including the fair market appraisal of Native land."

According to Francis, the ultimate objective is to reopen the lease decision and provide an opportunity for all tribal members to decide on whether the project is truly in the best interest of the community, based on sound environmental and economic information. "Our position is that no appeal was required because BIA's approval of the lease was final and effective immediately without having first given careful consideration to these issues before approving the lease. We believe BIA should have given careful consideration to these issues before approving the lease."

Quoddy Bay LNG Deputy Project Manager Adam Wilson says the tribal council over a month ago approved an amendment to the ground lease that will clarify what the BIA approved, but he says the council did unilaterally added some language in that Quoddy Bay wants to approve. According to Wilson, the BIA will need to approve the amendment once the two parties agree to it.

"The tribe just held elections, and it is difficult for us to get it done before the new council takes over," comments Wilson. He believes once the ground lease is approved it will make the lawsuit moot and clarify the ground lease and the BIA decision. Wilson believes the amendment also will make NN's argument at a higher court level moot.

NN's litigation is being handled by the Environmental and Natural Resources Law Clinic at Vermont Law School, with Associate Director Teresa Clemmer as lead attorney.